Posts tagged "Protection"

Care and Protection of M.C. (Lawyers Weekly No. 10-054-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12339   CARE AND PROTECTION OF M.C.       Suffolk.     October 3, 2017. – April 9, 2018.   Present (Sitting at Greenfield):  Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.     Impoundment.  Minor, Care and protection.  Parent and Child, Care and protection of minor.  Constitutional Law, Waiver of constitutional rights, Impoundment order, Self-incrimination.  Witness, Self-incrimination.  Evidence, Communication between patient and psychotherapist.  Practice, Civil, Care and protection proceeding, Impoundment order, Waiver.  Waiver.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on December 28, 2016.   The case was reported by Lenk, J.     Jeanne M. Kaiser (Bonnie G. Allen also present) for the mother. Mark H. Bluver for the father. Steven Greenbaum, Assistant District Attorney, for the Commonwealth. Scott R. Chapman, Committee for Public Counsel Services (Jessica McArdle, Committee for Public Counsel Services, also present) for the child.     GAZIANO, J.  In this case, we consider the appropriate standards and procedures for requests by the parties and the Commonwealth for the release of impounded records in a care and protection proceeding in the Juvenile Court.  The mother and the father are the subjects of a care and protection proceeding commenced in the Juvenile Court by the Department of Children and Families (department), and are defendants in criminal child abuse cases pending in the Superior Court.  The records from the care and protection proceeding, including the transcripts and exhibits from a trial to terminate parental rights, are impounded, pursuant to G. L. c. 119, § 38, and Juvenile Court Standing Order 1-84, Mass. Ann. Laws Court Rules, Standing Orders of the Juvenile Court, at 1107 (LexisNexis 2016). The father sought access to impounded records from the care and protection proceeding in conjunction with his upcoming criminal trial.  The Commonwealth also sought access to the records for its use in preparation for both the father’s and the mother’s pending criminal trials.  The mother opposed portions of the father’s motion, and opposed the Commonwealth’s motion in its entirety.  The child opposed the release of any records on privacy grounds.  Concluding that both the father and the Commonwealth had met the burden of demonstrating that there was good cause to grant the requested relief from impoundment, a Juvenile Court judge allowed both motions.  After the mother’s application for relief in the Appeals Court was denied, she […]

Read more...

Posted by Massachusetts Legal Resources - April 9, 2018 at 5:36 pm

Categories: News   Tags: , , , , ,

Care and Protection of a Minor (Lawyers Weekly No. 10-182-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12403   CARE AND PROTECTION OF A MINOR.     November 10, 2017.     Supreme Judicial Court, Superintendence of inferior courts.  Practice, Civil, Notice of appeal.  Notice, Timeliness.     The father of a child who is the subject of a care and protection proceeding in the Norfolk County Division of the Juvenile Court Department filed a petition pursuant to G. L. c. 211, § 3, with a single justice of this court seeking relief pursuant to the court’s general superintendence power.  The father is an attorney who is representing himself.  The record of material he has put before us is confusing, to say the least.  It appears that the child has been removed from his parents’ custody and that the father contests the removal.  In his G. L. c. 211, § 3, petition he sought, among other things, a jury trial in the care and protection proceeding.  He also claimed that the Department of Children and Families has violated his due process rights and that “non-party participants” in the care and protection proceeding should have been sequestered during certain motion hearings in the Juvenile Court.   The single justice denied the petition without a hearing on May 5, 2017.  The petitioner then filed a petition for a writ of certiorari with the United States Supreme Court on May 10, 2017.  While the certiorari petition was pending, the petitioner filed a motion with the single justice, on August 7, 2017, for leave to file a late notice of appeal from the denial of the G. L. c. 211, § 3, petition.  The single justice denied the motion on September 12, 2017.  The petitioner then filed a notice of appeal from the denial of that motion, and his appeal was entered in this court on September 22, 2017.  Shortly thereafter, the United States Supreme Court denied his certiorari petition, on October 2, 2017.   The petitioner’s appeal to this court involves only the denial of his motion for leave to file a late notice of appeal.  The single, very limited issue that is properly before us is whether the single justice erred or abused his discretion in denying that motion.  Nevertheless, the multitude of papers that the petitioner has filed in this court focus almost exclusively on the underlying merits of his G. L. c. 211, § 3, petition, and address only minimally the issue of the late notice of appeal.  He has […]

Read more...

Posted by Massachusetts Legal Resources - November 10, 2017 at 9:56 pm

Categories: News   Tags: , , , , ,

Care and Protection of Walt (Lawyers Weekly No. 10-167-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12295   CARE AND PROTECTION OF WALT.[1]       Worcester.     May 1, 2017. – October 20, 2017.   Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[2]     Department of Children & Families.  Minor, Custody, Temporary custody.  Parent and Child, Custody of minor.  Appeals Court, Appeal from order of single justice.  Jurisdiction, Equitable.       Petition filed in the Worcester County Division of the Juvenile Court Department on June 2, 2016.   A hearing on continuation of an ex parte emergency order granting temporary custody was had before Anthony J. Marotta, J.   A petition for interlocutory review was heard in the Appeals Court by Judd J. Carhart, J.; motions for reconsideration and for a stay were also heard by him, and his order was reported by him to a panel of the Appeals Court.  The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Ann Balmelli O’Connor, Committee for Public Counsel Services, for the father. Bryan K. Clauson (Marianne W.B. MacDougall also present) for the child. Richard A. Salcedo for Department of Children and Families. Evan D. Panich, Katrina C. Rogachevsky, Jessica Berry, Susan R. Elsen, & Jamie Ann Sabino, for Children’s Law Center of Massachusetts & others, amici curiae, submitted a brief.     GANTS, C.J.  Under G. L. c. 119, § 29C, if a Juvenile Court judge grants temporary custody of a child to the Department of Children and Families (department), the judge “shall certify that the continuation of the child in his home is contrary to his best interests and shall determine whether the department . . . has made reasonable efforts prior to the placement of a child with the department to prevent or eliminate the need for removal from the home.”  In this opinion, we resolve three legal issues regarding the reasonable efforts determination. First, we hold that a judge must make a reasonable efforts determination when issuing an order transferring custody of the child to the department for up to seventy-two hours at the emergency hearing, and must revisit that determination at the temporary custody hearing that must follow, commonly known as the “seventy-two hour hearing,” if the judge continues the department’s temporary custody of the child. Second, § 29C provides that reasonable efforts by the department prior to removal of a child from the home are not required […]

Read more...

Posted by Massachusetts Legal Resources - October 20, 2017 at 5:53 pm

Categories: News   Tags: , , , , ,

Care and Protection of Vieri (Lawyers Weekly No. 11-136-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   16-P-1706                                       Appeals Court   CARE AND PROTECTION OF VIERI.[1]     No. 16-P-1706.   Berkshire.     September 11, 2017. – October 18, 2017.   Present:  Green, Sullivan, & Sacks, JJ.     Minor, Care and protection.  Parent and Child, Care and protection of minor.  Practice, Civil, Care and protection proceeding.  Department of Children & Families.       Petition filed in the Berkshire County Division of the Juvenile Court Department on October 26, 2015.   The case was heard by Judith A. Locke, J.     Daniel R. Katz for the mother. Andrew J. Haile, Assistant Attorney General, for Department of Children and Families. William A. Comeau for the child.     SULLIVAN, J.  Vieri’s adoptive mother, who is also his maternal grandmother (mother), appeals from an adjudication that Vieri is in need of care and protection pursuant to G. L. c. 119, § 26.  On appeal the mother challenges the Juvenile Court judge’s determination that she is currently unfit to parent Vieri.  We affirm. Background.  We summarize the judge’s findings and the evidence consistent with those findings.  Vieri was born in September, 2001.  The mother adopted Vieri and his older brother, Alan (a pseudonym), in November of 2006, when Vieri was five years old and Alan was seven.[2] In June, 2014, the Department of Children and Families (department) began an investigation arising from concerns that Vieri was neglected.  A little over a week later, the town health department, which had had ongoing contact with the mother over various issues in the home, responded to complaints of a sewage leak in the home.  Ultimately, over 2,500 gallons of raw sewage were removed from the basement. The mother left Vieri, then thirteen, and Alan “on [their] own most of the summer” of 2015.  During this time, Vieri was arrested twice; he was charged with possession of alcohol and shoplifting in July.  Later in September, 2015, Vieri was charged with larceny for stealing $ 800 from the mother.  Vieri testified, and the judge credited, that he took the money because the mother left him and Alan without food.  The department subsequently created an interim service plan for the mother, which included cooperating with the department and meeting with the assigned social worker, providing food in the home, keeping the home clean, and not leaving Vieri home alone without adult supervision. In October, 2015, an agent of the […]

Read more...

Posted by Massachusetts Legal Resources - October 18, 2017 at 3:48 pm

Categories: News   Tags: , , , , ,

Care and Protection of Vick (Lawyers Weekly No. 11-084-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   15-P-1451                                       Appeals Court   CARE AND PROTECTION OF VICK.[1]     No. 15-P-1451.   Plymouth.     May 10, 2016. – July 13, 2016.   Present:  Cypher, Blake, & Henry, JJ.     Parent and Child, Care and protection of minor, Custody of minor, Interference with parental rights.  Minor, Care and protection, Custody.       Petition filed in the Plymouth County Division of the Juvenile Court Department on November 25, 2013.   The case was heard by John P. Corbett, J.     Karen O. Young for the mother. Rizwanul Huda for the child. Sookyoung Shin, Assistant Attorney General, for Department of Children and Families. Dennis M. Toomey for the father.     BLAKE, J.  A judge of the Juvenile Court found that the child was in need of care and protection, that the mother was unfit to assume parental responsibility, and that the unfitness was likely to continue into the indefinite future.  On appeal, the mother challenges the sufficiency of the evidence supporting the judge’s conclusion that she was unfit, contending that the evidence failed to establish a nexus between her parenting and a showing of harm to the child.  She also claims that the judge did not conduct an evenhanded assessment of the evidence, and ignored the child’s preference to live with his mother.  The child joins in these arguments.  We affirm on the basis that the mother was unfit to assume parental responsibility due to neglect of the child. Background.  We summarize the relevant facts and procedural history as set forth in the judge’s decision and as supported by the record, reserving other facts for later discussion.  The parents met in high school and, shortly thereafter, the mother became pregnant.  The child was born in February, 2002.  Immediately after his birth, and for the next four and one-half years, the father was the child’s primary caretaker; during that time period, the father and child lived with the father’s mother.  When the father lost his job, he placed the child in the mother’s care.  In 2008, the father  moved to Georgia, where he has extended family, because he was unable to find employment in Massachusetts.  Despite the distance, the father maintained contact with the child’s schools and medical providers.  From 2008 to 2013, the child spent most of his summers with the father in Georgia. In 2013, the mother resided […]

Read more...

Posted by Massachusetts Legal Resources - July 18, 2016 at 7:13 am

Categories: News   Tags: , , , , ,

Peterborough Oil Company, LLC v. Department of Environmental Protection (Lawyers Weekly No. 10-076-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11851   PETERBOROUGH OIL COMPANY, LLC  vs.  DEPARTMENT OF ENVIRONMENTAL PROTECTION. Worcester.     October 8, 2015. – June 6, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Hazardous Materials.  Oil and Gas.  Department of Environmental Protection.  Statute, Construction.  Administrative Law, Agency’s interpretation of regulation.  Regulation.  Massachusetts Oil and Hazardous Material Release Prevention Act.       Civil action commenced in the Superior Court Department on August 27, 2013.   The case was heard by William F. Sullivan, J., on motions for summary judgment.   The Supreme Judicial Court granted an application for direct appellate review.     Robert D. Cox, Jr., for the plaintiff. Eric S. Brainsky for Independent Oil Marketers Association of New England. Maryanne Reynolds, Assistant Attorney General, for the defendant. Edward J. DeWitt, for Association to Preserve Cape Cod, amicus curiae, submitted a brief. Donald D. Cooper, for LSP Association, Inc., amicus curiae, submitted a brief.     DUFFLY, J.  After a spill of hazardous materials within a specified radius of a public water supply, Department of Environmental Protection (DEP) regulations require that those deemed to be liable undertake cleanup and monitoring actions to ensure the spill does not pose a danger to that water supply.  See 310 Code Mass. Regs. §§ 40.0801, 40.0810, 40.0993(3)(a) (2014); 40.1030(2)(e) (2015).  An exemption promulgated in 2007, however, exempts “oil” from some of these requirements when other enumerated requirements are met.  See 310 Code Mass. Regs. § 40.0924(2)(b)(3)(a) (2014) (oil exemption).  The DEP’s definition of the term “oil” in this “oil exemption” is at the heart of this lengthy litigation between DEP and Peterborough Oil Company, LLC (Peterborough). Peterborough owns a property, now vacant, in Athol, where it operated a gasoline station for more than ten years.[1]  The property is located within a protection area for public water supply wells.  In 1994, a release of leaded gasoline that originated from a subterranean gasoline storage tank was detected in soil on the site.  Since then, DEP has required Peterborough to undertake supervised cleanup and monitoring activities at the site.  In 2008, shortly after the oil exemption was established, Peterborough submitted a revised remediation plan to DEP, stating that further remediation was not required because the entirety of the leaded gasoline spilled falls within the definition of “oil” for purposes of the exemption.  In 2011, DEP audited the site and […]

Read more...

Posted by Massachusetts Legal Resources - June 6, 2016 at 4:59 pm

Categories: News   Tags: , , , , , , ,

Kain, et al. v. Department of Environmental Protection (Lawyers Weekly No. 10-066-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11961   ISABEL KAIN & others[1]  vs.  DEPARTMENT OF ENVIRONMENTAL PROTECTION.       Suffolk.     January 8, 2016. – May 17, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Department of Environmental Protection.  Environment, Air pollution.  Regulation.  Administrative Law, Regulations.  Declaratory Relief.  Statute, Construction.       Civil action commenced in the Superior Court Department on August 12, 2014.   The case was heard by Robert B. Gordon, J., on motions for judgment on the pleadings.   The Supreme Judicial Court granted an application for direct appellate review.     Jennifer K. Rushlow (Susan J. Kraham, of New York, & Veronica S. Eady with her) for Conservation Law Foundation & another. Jo Ann Shotwell Kaplan, Assistant Attorney General, for the defendant. Phelps Turner & C. Dylan Sanders, for Isabel Kain & others, were present but did not argue. The following submitted briefs for amici curiae: Stephanie R. Parker for Clean Water Action & others. Edward J. DeWitt for Association to Preserve Cape Cod. Arthur P. Kreiger & Jessica A. Wall for William R. Moomaw & others. Robert J. Muldoon, Jr., & Thomas Paul Gorman for David A. Wirth.     CORDY, J.  In this case, we are asked to decide whether the Department of Environmental Protection (department) has fulfilled its statutory mandate under G. L. c. 21N, § 3 (d) (§ 3 [d]), which provides that the department “shall promulgate regulations establishing a desired level of declining annual aggregate emission limits for sources or categories of sources that emit greenhouse gas emissions.”  By the terms of the enabling legislation, the Global Warming Solutions Act, St. 2008, c. 298 (act), these regulations were to be issued by January 1, 2012, to take effect on January 1, 2013, and to expire on December 31, 2020.  See St. 2008, c. 298, § 16.  The department failed to take action by the statutory deadline, and in November, 2012, a group of residents submitted a rulemaking petition to the department seeking the issuance of regulations pursuant to § 3 (d) to limit greenhouse gas emissions[2] in the Commonwealth. The department held a public hearing on June 13, 2013, to consider the petition.  Shortly thereafter, it issued a written statement addressing the petitioners’ concerns and concluding that it had complied with the requirements of the act, including those set forth in § 3 (d).  The statement also referenced […]

Read more...

Posted by Massachusetts Legal Resources - May 17, 2016 at 5:33 pm

Categories: News   Tags: , , , , , ,

Navy Yard Four Associates, LLC v. Department of Environmental Protection, et al. (Lawyers Weekly No. 11-130-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   14-P-607                                        Appeals Court   NAVY YARD FOUR ASSOCIATES, LLC  vs.  DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.[1] No. 14-P-607. Suffolk.     April 2, 2015. – September 4, 2015.   Present:  Kafker, C.J., Kantrowitz, & Hanlon, JJ.   Harbors.  Real Property, Harbors, Restrictions, Littoral property, License.  Trust, Public trust.  License.  Department of Environmental Protection.  Administrative Law, Agency’s authority, Regulations, Agency’s interpretation of statute, Agency’s interpretation of regulation.  Regulation.  Statute, Construction.  Words, “Tidelands.”     Civil action commenced in the Superior Court Department on December 20, 2011.   The case was heard by Peter M. Lauriat, J., on motions for judgment on the pleadings and for partial summary judgment.     Donald R. Pinto, Jr., for the plaintiff. Seth Schofield, Assistant Attorney General, for Department of Environmental Protection. John A. Pike, for Conservation Law Foundation, amicus curiae, submitted a brief.   KAFKER, C.J.  This appeal arises from a dispute over public accommodation requirements imposed within a waterways license issued by the Department of Environmental Protection (DEP) pursuant to G. L. c. 91 for property currently owned by the plaintiff, Navy Yard Four Associates, LLC (NYF).  The property is an approximately 2.6-acre parcel of land in Charlestown abutting Boston Harbor.  It is the site of a 224-unit apartment building development known as Harborview.  DEP concluded in 2004 that the project was a nonwater-dependent use sited on filled “Commonwealth [t]idelands” and therefore special conditions were included as part of its waterways license to ensure that the project served a “proper public purpose.”  One of these special conditions was that seventy-five percent of the ground floor of the building be reserved for facilities of public accommodation.  In 2009, NYF sought to amend its license, particularly the public accommodation requirements, contending that (1) G. L. c. 91 limits “Commonwealth tidelands” to submerged lands and excludes the tidal flats on which this project is sited, and (2) “Commonwealth tidelands” do not include property owned by the Boston Redevelopment Authority, which owned the property at the time of permitting, or other such political subdivisions or quasi public agencies of the Commonwealth.  DEP declined to grant the amendment, and NYF appealed DEP’s decision to the Superior Court in accordance with G. L. c. 30A, § 14, naming both DEP and the Commonwealth as defendants.  The Superior Court affirmed DEP’s denial of NYF’s requested c. 91 license amendment and rejected NYF’s request for a declaratory […]

Read more...

Posted by Massachusetts Legal Resources - September 4, 2015 at 2:56 pm

Categories: News   Tags: , , , , , , , , ,

Care and Protection of Laurent (Lawyers Weekly No. 11-005-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   14-P-189                                        Appeals Court   CARE AND PROTECTION OF LAURENT.[1] No. 14-P-189. Middlesex.     September 5, 2014. – January 9, 2015.   Present:  Green, Graham, & Katzmann, JJ.   Minor, Care and protection.  Parent and Child, Care and protection of minor.  Practice, Civil, Care and protection proceeding, Findings by judge.       Petition filed in the Middlesex County Division of the Juvenile Court Department on October 17, 2011.   The case was heard by Kenneth J. King, J.     David J. Cohen, Committee for Public Counsel Services, for the mother. Richard A. Salcedo for Department of Children and Families. Julia A.B. Pearson for the child.     GRAHAM, J.  On October, 17, 2011, the Department of Children and Families (department) filed a care and protection petition in the Middlesex County Division of the Juvenile Court Department pursuant to G. L. c. 119 § 24, alleging Laurent was a child in need of care and protection.  On that day, the trial court judge granted temporary emergency custody of Laurent to the department.  The department later placed him in foster care, where he remained through the conclusion of the trial. Trial on the department’s petition occurred over seven non-consecutive days, beginning on November 1, 2012, and concluding on January 3, 2013.  On February 21, 2013, the judge found the mother unfit, essentially, on the basis that she was too cognitively limited to parent the child.  Accordingly, the child was committed to the custody of the department, with reunification as the plan. On appeal, the mother contends that the judge’s findings regarding her parenting deficiencies, taken as a whole, do not support a conclusion that the child was at risk of serious harm, and thus in need of care and protection.[2]  We agree with mother and, accordingly, reverse the judgment. 1.  Background.  We summarize the material facts from the judge’s extensive findings, which are supported by the evidence, and essentially undisputed. Laurent is one of five children born to the mother, who was forty years old at time of trial.  The mother experienced significant trauma and neglect as a child.  As a child, the mother contracted lead poisoning, which resulted in severe developmental disabilities.  In addition, the mother sustained a skull fracture when she was eight years old.  When she was fourteen, she was placed in department custody due to abuse and neglect.  She was […]

Read more...

Posted by Massachusetts Legal Resources - January 9, 2015 at 4:49 pm

Categories: News   Tags: , , , , ,

Stone-Ashe v. Department of Environmental Protection, et al. (Lawyers Weekly No. 11-082-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   13-P-489                                        Appeals Court WENDY STONE-ASHE, trustee,[1]  vs.  DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.[2] No. 13-P-489. Suffolk.     January 14, 2014. – July 16, 2014.   Present:  Trainor, Graham, & Agnes, JJ. Trust, Public trust.  Department of Environmental Protection.  Administrative Law, Agency’s authority, Regulations.  Regulation.  Real Property, Littoral property, Harbors, Wharf, Restrictions.  Harbors.  Evidence, Expert opinion.  Witness, Expert.       Civil action commenced in the Superior Court Department on October 29, 2010.   The case was heard by Bonnie H. MacLeod, J., on a motion for judgment on the pleadings.     Richard A. Nylen, Jr., for the plaintiff. Jo Ann Shotwell Kaplan, Assistant Attorney General, for the defendants.      GRAHAM, J.  The plaintiff, Wendy Stone-Ashe, trustee of the Stone-Ashe Realty Trust,[3] appeals from a Superior Court judgment that affirmed a final decision of the Commissioner (commissioner) of the Department of Environmental Protection (department), which concluded that a seawall on the plaintiff’s property lies seaward of the historic high water mark and, therefore, is under the jurisdiction of the department and subject to public rights pursuant to G. L. c. 91.  Substantially for the reasons stated in the decisions of the commissioner and the Superior Court judge, we affirm. Background.  1.  Statutory and regulatory framework.  “Under the public trust doctrine, the Commonwealth holds tidelands in trust for the use of the public for, traditionally, fishing, fowling, and navigation.”  Moot v. Department of Envtl. Protection, 448 Mass. 340, 342 (2007), S.C., 456 Mass. 309 (2010).  See generally Boston Waterfront Dev. Corp. v. Commonwealth, 378 Mass. 629, 631-632 (1979) (detailing history of public trust doctrine).  In enacting G. L. c. 91, the Legislature delegated at least some of its authority to preserve and regulate the Commonwealth’s tidelands to the department.  Moot v. Department of Envtl. Protection, supra at 347.  General Laws c. 91, § 1, inserted by St. 1983, c. 589, § 21, defines “[t]idelands” as “present and former submerged lands and tidal flats lying below the mean high water mark.”  “Private tidelands” are defined as “tidelands held by a private party subject to an easement of the public for the purposes of navigation and free fishing and fowling and of passing freely over and through the water.”  Ibid. The department’s jurisdiction extends only to the tidelands seaward of the historic high water mark.  “[B]ecause actual high and low water marks can change over time, notably pursuant to licenses to fill […]

Read more...

Posted by Massachusetts Legal Resources - July 16, 2014 at 6:00 pm

Categories: News   Tags: , , , , , ,

Next Page »